People v. Thompson CA2/2

Filed 9/3/21 P. v. Thompson CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has
not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, B308172

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. A399617)
v.

WALTER THOMPSON, JR.,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los
Angeles County, Michael Garcia, Judge. Reversed.

Mark D. Lenenberg, under appointment by the Court of
Appeal, for Defendant and Appellant.

Matthew Rodriquez, Acting Attorney General, Lance E.
Winters, Chief Assistant Attorney General, Susan Sullivan
Pithey, Assistant Attorney General, Idan Ivri and Allison H.
Chung, Deputy Attorneys General, for Plaintiff and Respondent.
 Defendant and appellant Walter Thompson, Jr.
(defendant), appeals from the denial of his petition to vacate his
1984 felony murder conviction and to resentence him pursuant to
Penal Code section 1170.95.1 He contends that vacatur and
resentencing is required under principles of double jeopardy due
to the reduction of the murder conviction to second degree
murder at the time of the original sentencing in 1985, and
substantial evidence does not support a finding that he acted
with reckless indifference to human life. We reject defendant’s
double jeopardy claim but conclude that the trial court erred by
failing to make an independent finding that defendant could still
be convicted of murder under current law. We thus reverse and
remand with directions.

BACKGROUND
The charges
In 1984, defendant and codefendant Oscar Harrison were
charged with murder, robbery, and burglary. ~(CT 4-6)~ Midtrial
Harrison pled guilty to second degree murder. Defendant was
convicted by a jury of first degree murder, which the trial court
reduced to second degree murder. ~(CT 7, 23-24; B012630 2 RT
498)~ Defendant was sentenced to a term of 15 years to life in
prison, and the judgment was affirmed on appeal in People v.
Thompson (Nov. 21, 1985, B012630) (nonpub. opn.).~(CT 25; 233-
234)~

1 All further statutory references are to the Penal Code,
unless otherwise indicated.

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Prosecution evidence presented at trial
On the morning of September 12, 1983, Larry Smith, the
manager of an apartment building in Hollywood, discovered the
body of Martin Eisinger in Eisinger’s first floor studio apartment.
~(B012630 - 1 RT 70, 183-184, 187)~ Smith smelled a foul odor
coming from the apartment and discovered a bent window screen
partially hanging off. He then looked in the window and saw
Eisinger’s legs protruding from under a blanket, with papers,
boxes, and other things strewn about the room. ~(B012630 - 1 RT
189-191)~ Smith did not know that Eisinger was dead. He called
the police and was told to break in immediately. ~(B012630 - 1
RT 191)~ He then found Eisinger dead, lying face up with a large
bath towel on his face covering his mouth (but not his nose) and
tightly tied in the back of his neck with a single knot. ~(B012630
- 1 RT 191-193, 204, 216)~ The room was messy, but not much
more than its usual state.2 ~(B012630 - 1 RT 205)~ Smith did
not recall seeing a bed sheet tied around the body. ~(B012630 - 1
RT 192)~ Eisinger’s apartment had been previously burglarized
several times but he refused to keep the windows locked. His
windows were open the day Smith found his body. ~(B012630 - 1
RT 207)~
Detective Richard Swanston, one of the investigating
officers, arrived on the scene that afternoon. ~(B012630 - 1 RT
68-69)~ Upon entering the apartment he saw Eisinger’s body a
few feet inside the front door, partially covered with a rust-
colored blanket. ~(B012630 - 1 RT 70-71, 74)~ There was an
orange towel on the floor beneath his head and neck, and his

2 Eisinger’s apartment was usually so messy that the health
department was involved and fines had been imposed twice in the
past.~(B012630 - 1 RT 205-206)~

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hands and arms were tied behind his back with a light blue fitted
bed sheet. The sheet was tied to his right arm, knotted, went
around his back to his left arm, and was wrapped around his left
arm twice but not knotted. ~(B012630 - 1 RT 72)~ It appeared to
Detective Swanston that the place had been ransacked, with
drawers in the dresser opened and emptied, and the closet’s
contents were strewn about the floor. Eisinger had contusions on
his forehead above the right eye, to both knees, elbows, arms, and
hands. ~(B012630 - 1 RT 72)~ The bathroom window was open,
and the screen was bent and pulled out. No broken glass was
found.~(B012630 - 1 RT 73-74, 84)~
Deputy medical examiner Sharon Schnittker testified that
Eisinger died of soft ligature strangulation ~(B012630 - 2 RT 274,
277)~ He also had injuries to the face consistent with blunt force
trauma and a bruise on his buttock consistent with a knee having
been placed there by someone who was strangling him from
behind. ~(B012630 - 2 RT 281, 283)~ In her opinion, Eisinger
died from a lack of oxygen due to having had the towel knotted
around his neck and then tightened. ~(B012630 - 2 RT 292)~
Dr. Schnittker noted that Eisinger was 75 years old with a heart
problem but found no indication that these factors had
contributed to his death. She explained that it had not been
documented that an older person would succumb faster to
compression of the external airway than a younger person.
~(B012630 - 2 RT 297-297)~
Smith testified that he was acquainted with both defendant
and codefendant Harrison,~(B012630 - 1 RT 198)~ who lived
together at the Hollywood building. Harrison, who did
maintenance work for the building,~(B012630 - 1 RT 199, 203)~
had installed all the window screens. ~(B012630 - 1 RT 204)~

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Smith knew defendant only as Harrison’s friend who would come
to the apartment at times and drink beer. ~(B012630 - 1 RT
199)~ After Smith and Harrison had a disagreement not long
before the murder, Harrison went to live with Beverly Harris
(Harris). ~(B012630 - 1 RT 199, 209)~ Smith and Harrison made
up two weeks after the murder, and Harrison moved back in and
lived there until he was arrested at Smith’s apartment on
February 11, 1984.~(B012630 - 1 RT 77, 213)~
Bernadette (or Rosalie) Miera testified that she lived in the
Hollywood apartment building and knew Smith and Harrison.
~(B012630 - 1 RT 92)~ Miera admitted that on February 7, 1984,
while she was in custody, she spoke to a detective at the
Hollywood station about the night of the murder, but she claimed
that everything she told him was a lie. ~(B012630 - 1 RT 93-106,
122)~ She admitted telling the detective that she saw Harrison
and another man walk to the side of the building where
Eisinger’s apartment was, and shortly after that she heard the
sounds of breaking glass, of someone gagging, and then someone
yelling, “What’s happening, what’s happening?” ~(B012630 - 1 RT
104-105)~ She did not recognize the voice, did not know
defendant and would not have recognized his voice. ~(B012630 - 1
RT 105-106)~ Miera also told the detective that about four
minutes after hearing the gagging sounds she saw Harrison and
the other man walk away from the building. She heard Harrison
say, “Let’s get out of here, nigger,” and she saw Harrison put
something in his waistband.~(B012630 - 1 RT 106-107)~
Detective Jerry Stephens testified that he had interviewed
Miera, and confirmed she told him she was sitting outside the
night of the murder and saw Harrison about 25 feet from her
with the other man, walking westbound in front of the building

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down a walkway and out of view. ~(B012630 - 1 RT 161, 165)~ A
few seconds later, she said she heard a commotion at the west
side of the building and something that sounded like glass
breaking. A couple minutes later she heard gagging sounds from
the victim’s apartment, like someone was gasping for air. About
four minutes later, she saw Harrison and the other man walk out
and run away eastbound.~(B012630 - 1 RT 165)~
Harris testified about conversations she heard between
defendant and Harrison~(B012630 - 1 RT 227)~ sometime in
August 1983. Harrison then spoke of the burglary of Eisinger’s
apartment that he and another person committed while Eisinger
slept. They stole $3,000. ~(B012630 - 1 RT 230-232)~ Defendant
suggested another burglary. ~(B012630 - 1 RT 234)~ Harris
testified that defendant suggested that Harrison put a “sheet—
towel” over the man’s head so he would not be able to identify
him. ~(B012630 - 1 RT 242)~ Then Harrison said that he was
going to put the sheet over the man’s face so that he would not
recognize him.~(B012630 - 1 RT 246)~
~(B012630 - 1 RT 235, 239)~ A week later Harrison told
Harris that after entering through a side window, he put a sheet
over the man’s head, put his knee in his chest, and beat him with
his fist.3 ~(B012630 - 1 RT 239-242)~ He then found $500 in $20
bills and a ring. Defendant said to Harrison, “I heard the man in
there gagging. Did you kill him? Did you kill him[?]” Harrison
said, “No, I did not kill him. I did not kill him.” Defendant said,
“Man, you had to kill him? You had to kill him, because I heard
him gagging.” Harrison replied, “No, I didn’t kill him.”

3 Although sometimes Harris made it clear who said or did
what, she also testified without objection that “they” said or did
something.

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 Harris’s sister, Azalia Harris, testified that she overheard
the same conversation between defendant and
Harrison.~(B012630 - 2 RT 368-371)~
Detective Swanston’s summary of defendant’s interview
was attached as an exhibit to the prosecution’s opposition to
defendant’s section 1170.95 petition. ~(CT 59)~ It contained a
reference to defendant’s admission that it was intended that he
be the lookout. “That night we parked . . . [,] walked to the side of
the apartment and [Harrison] took off the screen to the bathroom
window. He opened up the bathroom window and climbed in. I
waited outside. He was struggling with the old man. I heard
him gagging. I stayed at the front porch steps and waited. Then
I went inside through the same window. When I got inside I saw
the old man laying [sic] on the floor with the gold blanket over
him. I thought he was dead. [Harrison] took a ring off the floor
and he got about $500.00 from the inside of the old man[’]s jacket
in the closet. I looked around in the house too but I didn’t take
anything. We both climbed out the same window and ran down
to the motorcycle.”
The section 1170.95 petition
In 2019, defendant filed a petition pursuant to section
1170.95 to vacate his murder conviction. ~(CT 26-28)~ On the
form petition, defendant checked the boxes for the allegations
that he had been charged with murder, that he was not the
actual killer, that he was convicted “pursuant to the felony
murder rule or the natural and probable consequences doctrine,”
and that his murder conviction would be invalid under the
“changes made to Penal Code §§ 188 and 189, effective January 1,
2019.” ~(CT 27)~ Defendant checked the box requesting the
appointment of counsel, as well as the box averring that there

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has been a prior determination by a court or jury that he was not
a major participant in the crime or did not act with reckless
indifference to human life. ~(CT 27-28)~ The prosecution opposed
the petition on the grounds that section 1170.95 was
unconstitutional4 and asserted that the record of conviction
showed that defendant could still be convicted of murder based
upon express or implied malice. ~(CT 33)~
The trial court appointed counsel, received briefing from
the prosecution and defense counsel, found that defendant had
made a prima facie showing of eligibility for relief, and scheduled
a show-cause hearing on the merits of the petition. ~(CT 30, 237-
241)~ At the hearing, the prosecutor submitted its case on the
record of conviction without presenting new evidence, and the
trial court heard the argument of counsel.~(RT 29)~
On September 17, 2020, the trial court denied relief upon
finding that defendant was a major participant in the underlying
felony and acted with reckless indifference to human life. ~(RT
48; CT 242, 245-246)~ The court based its reckless indifference
finding on evidence that defendant was in close proximity to the
scene, heard the victim struggling and gagging, and did not come
to his assistance. The court issued a memorandum of decision
explaining its reasoning in more detail and discussing factors set
forth in People v. Banks (2015) 61 Cal.4th 788 (Banks) and People
v. Clark (2016) 63 Cal.4th 522 (Clark). ~(RT 48; CT 259-268)~
The trial court rejected defense arguments because “the jury
concluded there was enough evidence to support a first-degree
murder conviction and [defendant] could still be convicted of

4 The trial court rejected this contention and respondent does
not renew it here. ~(CT 267)~

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murder as a major participant who acted with reckless
indifference . . . .”~(CT 267)~
Defendant filed a timely notice of appeal from the trial
court’s order.~(CT 243)~

DISCUSSION
I. Contentions and legal principles underlying section
1170.95
Defendant contends that the trial court erred in denying
the petition, finding that the reduction of the murder conviction
to second degree murder did not make him eligible for relief
amounted to a violation of the constitutional prohibition against
double jeopardy. ~(AOB 30-33; CT 246 (finding))~ Defendant also
contends that substantial evidence does not support a finding
that he acted with reckless indifference to human life.~(AOB 45)~
Section 1170.95 was added by Senate Bill No. 1437 (2017-
2018 Reg. Sess.) to provide a procedure by which those convicted
of murder can seek retroactive relief if the changes in sections
188 or 189 would affect their previously affirmed convictions.
(People v. Martinez (2019) 31 Cal.App.5th 719, 722.) A person is
entitled to relief under section 1170.95 if he was convicted of
felony murder or murder under the natural and probable
consequences theory but could not now “be convicted of first or
second degree murder because of changes to Section 188 or 189
made effective January 1, 2019.” (§ 1170.95, subd. (a).)
“With one narrow exception [involving peace officer
victims], Senate Bill 1437 effectively eliminates murder
convictions premised on any theory of vicarious liability—that is,
any theory by which a person can be convicted of murder for a
killing committed by someone else (such as the felony-murder

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theory or the natural and probable consequences theory)—unless
the People also prove that the nonkiller defendant personally
acted with the intent to kill or was a major participant who acted
with reckless disregard to human life. (§§ 188, 189, subds. (e), (f),
1170.95.)” (People v. Fortman (2021) 64 Cal.App.5th 217, 222-
223, fns. omitted, review granted July 21, 2021, S269228.)
The reckless indifference requirement was first articulated
in Tison v. Arizona (1987) 481 U.S. 137 (Tison) and Enmund v.
Florida (1982) 458 U.S. 782 (Enmund). Collectively, the two
decisions “place conduct on a spectrum, with felony-murder
participants eligible for death only when their involvement is
substantial and they demonstrate a reckless indifference to the
grave risk of death created by their actions.” (Banks, supra, 61
Cal.4th at p. 794.) In Banks, decided after defendant was
convicted of felony murder, the California Supreme Court applied
the analysis to felony-murder special circumstance requirements
under section 190.2. (Banks, at p. 794.) As amended by Senate
Bill No. 1437 (2017-2018 Reg. Sess.), section 189, subdivision
(e)(3), incorporates the same requirement into the felony-murder
statute. Thus, to convict a defendant who did not kill, the
prosecution must prove that the defendant acted with reckless
indifference to human life as a major participant in one of the
enumerated serious felonies underlying felony murder.
The factors properly considered for determining reckless
indifference were clarified in Banks, supra, 61 Cal.4th 788 and
Clark, supra, 63 Cal.4th 522, where the California Supreme
Court explained that a finding of reckless indifference to human
life, “‘requires the defendant be “subjectively aware that his or
her participation in the felony involved a grave risk of death.”’”
(Banks, at p. 807.) Meaning it must be proven beyond a

10
reasonable doubt that the defendant “knew his own actions would
involve a grave risk of death.” (Ibid.)5
In Banks, our high court explained that when analyzing
whether a defendant displayed reckless disregard for human life
it is important to consider where the defendant’s conduct falls on
the “‘spectrum of culpability’” that Enmund and Tison
established. (In re Scoggins (2020) 9 Cal.5th 667, 675, citing
Banks, supra, 61 Cal.4th at p. 811.) “On one end of the spectrum
is Enmund, ‘the minor actor in an armed robbery, not on the
scene, who neither intended to kill nor was found to have had any
culpable mental state.’ (Tison, supra, 481 U.S. at p. 149.) At the
other end is ‘the felony murderer who actually killed, attempted
to kill, or intended to kill.’ (Id. at p. 150.)” (Scoggins, supra, at
p. 675.)
When the defendant makes a prima facia showing of
eligibility, and the trial court issues an order to show cause as it
did here, “the court shall hold a hearing to determine whether to
vacate the murder conviction and to recall the sentence and
resentence the petitioner on any remaining counts in the same
manner as if the petitioner had not been previously been
sentenced, provided that the new sentence, if any, is not greater
than the initial sentence.” (§ 1170.95, subd. (d)(1).) The
prosecution bears the burden to prove beyond a reasonable doubt

5 Reckless indifference to life is a “subjective awareness of a
higher degree of risk than the ‘conscious disregard for human life’
required for conviction of second degree murder based on implied
malice.” (People v. Johnson (2016) 243 Cal.App.4th 1247, 1285.)
“Conscious disregard for human life . . . ‘requires a defendant’s
awareness of engaging in conduct that endangers the life of
another—no more, and no less.’” (Ibid.)

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that the defendant is ineligible for vacatur and resentencing.
(§ 1170.95, subd. (d)(3).) The parties may consult the record of
conviction as the parties did here, or offer new or additional
evidence, unless “there was a prior finding by a court or jury that
the petitioner did not act with reckless indifference to human life
or was not a major participant in the felony, [and in such a case]
the court shall vacate the petitioner’s conviction and resentence
the petitioner.” (§ 1170.95, subd. (d)(2), italics added; accord,
People v. Ramirez (2019) 41 Cal.App.5th 923, 930-933.)
II. Double Jeopardy
Defendant contends that the trial court could not properly
find that he could still be convicted of first degree murder,
reasoning that the reduction of his conviction to second degree
murder was an implied acquittal of first degree murder, and
because second degree felony murder no longer exists under the
Senate Bill No. 1437 (2017-2018 Reg. Sess.) amendments, the
constitutional prohibition against double jeopardy precluded a
finding that defendant could still be convicted of first degree
murder.~(AOB 30-36)~
Although Senate Bill No. 1437 (2017-2018 Reg. Sess.)
eliminated second degree felony murder, “[a]n evidentiary
hearing under section 1170.95 . . . does not implicate double
jeopardy because section 1170.95 ‘involves a resentencing
procedure, not a new prosecution.’ [Citation.] The retroactive
relief provided by section 1170.95 is a legislative ‘act of lenity’
intended to give defendants serving otherwise final sentences the
benefit of ameliorative changes to applicable criminal laws and
does not result in a new trial or increased punishment that could
implicate the double jeopardy clause.” (People v. Hernandez
(2021) 60 Cal.App.5th 94, 111.)

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III. Standard of proof
Defendant contends that substantial evidence does not
support the trial court’s finding that he acted with reckless
indifference to human life. ~(AOB 45)~ Reaching its conclusion
that defendant acted with reckless indifference to human life, the
trial court considered the Banks factors as well as conduct the
court considered to be similar to the conduct in Tison and
dissimilar to conduct in Enmund. ~(CT 259-268)~ However, it
appears that the court applied the standard proof as stated in
People v. Duke (2020) 55 Cal.App.5th 113, review granted
January 13, 2021, S265309 (Duke). ~(RB 32-33, 36-37)~ Duke
held that the standard “is essentially identical to the standard of
substantial evidence, in which the reviewing court asks
‘“whether, on the entire record, a rational trier of fact could find
the defendant guilty beyond a reasonable doubt . . . .”’” (Id. at
p. 123, italics added [appellate substantial evidence standard],
quoting People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) Defendant
agrees that Duke sets forth the correct standard of proof but
contends that the prosecution failed to carry its burden to prove
that he could still have been convicted of murder under the
amended law. ~(AOB 30)~ We disagree that Duke states the
correct standard of proof.
We have recently rejected the reasoning of Duke and have
joined “the growing chorus” of appellate courts that require an
independent finding by the trial court whether it would convict
defendant on a still-viable theory, rather than whether a
reasonable jury could convict defendant on a still-viable theory.
(Fortman, supra, 64 Cal.App.5th at pp. 220-221, review granted,
citing, e.g., People v. Lopez (2020) 56 Cal.App.5th 936, review
granted Feb. 10, 2021, S265974; People v. Rodriguez (2020) 58

13
Cal.App.5th 227, review granted Mar. 10, 2021, S266652; People
v. Clements (2021) 60 Cal.App.5th 597, review granted Apr. 28,
2021, S267624; People v. Harris (2021) 60 Cal.App.5th 939,
review granted Apr. 28, 2021, S267802.) We concluded that
“section 1170.95, subdivision (d)(3) turns a petitioner’s
entitlement to relief on whether the trial court itself finds, beyond
a reasonable doubt, that defendant is guilty of murder on a still-
valid theory of liability.” (Fortman, supra, at pp. 224-225, italics
added.)
Here, although the trial court did not expressly state the
standard it applied, it is clear that no independent finding that
defendant would still be convicted under the amended law was
made, as the court denied relief on the ground that “the jury
concluded there was enough evidence to support a first-degree
murder conviction and [defendant] could still be convicted of
murder as a major participant who acted with reckless
indifference . . . .” (Italics added.) We thus remand the matter
for a new evidentiary hearing pursuant to section 1170.95,
subdivision (d), with application of the correct standard.6 (See
Fortman, supra, 64 Cal.App.5th at pp. 226-227.)

DISPOSITION
The order denying defendant’s section 1170.95 petition to
vacate his murder conviction and for resentencing is reversed.
The matter is remanded to the superior court with directions to
appoint counsel for defendant and to conduct a new evidentiary
hearing pursuant to section 1170.95, subdivision (d), and to make
an independent determination whether the prosecution has

6 We take no position on the outcome of such hearing.

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proven beyond a reasonable doubt that defendant is guilty of
murder on a still-valid theory of liability and thus ineligible for
relief under the statute.

________________________
CHAVEZ, J.

We concur:

________________________
LUI, P. J.

________________________
ASHMANN-GERST, J.

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